JAMIA MILIA ISLAMIA

FACULTY OF LAW

SUBJECT : Penology & Victimolo

TOPIC : "Does Death Penalty serves its
purpose as laid down in Modern Penology"?
Comment.

NAME : MANIK KAPOOR

CLASS : B.A.LLB 3RD YEAR
ROLL NO ; 16BLW008
 "Death penalty is irrevocable; it cannot be recalled. It extinguishes the flame of life
forever and is plainly destructive of the right to life, the most precious right of all, a right
without which enjoyment of no other rights is possible....”

- Justice P.N. Bhagwati in Bachan Singh vs. State of Punjab

INTRODUCTION

The recent execution of Mohammed Afzal Guru, convicted for the 2001 attack on the Indian
Parliament, has stirred up new debates between the abolitionists and retentionists about the
existence of the death penalty in India.1 The revived debate on the death penalty was also
ignited across the country after one of the most brutal and horrifying gang rapes in New Delhi
where six men raped a girl in a moving bus and penetrated her with the iron rod. 2 After this
brutal gang rape in Delhi, there were calls for the use of the death penalty. 3 In the end, the
four accused were sentenced to death, with societal opinion prevailing that this punishment
was just for the crime.4

So, the basic question that arises is that whether the death penalty is the only solution that can
be offered to the rising crimes? Most importantly, will death penalty even help in combating
any crime? Abolitionists argue that human rights are side-lined by awarding the death
penalty; on the other hand, retentionists paint a picture of the death penalty as an effective
measure to counter crime due to its deterrence effect. The researcher supports the former
view and tries to explain to that favour in this paper.

Before going further we need to know what is meant by capital punishment. So, capital
punishment or the death penalty is a legal process whereby a person is put to death by the
state as a punishment for a crime. The judicial decree that someone be punished in this
manner is a death sentence, while the actual enforcement is an execution. Crimes that can
result in a death penalty are known as capital crimes or capital offences. The term capital
originates from the Latin word “capitalis”, literally meaning "regarding the head" (referring
to execution by beheading).5

According to Encyclopaedia Britannica, capital punishment or death penalty refers to

execution of an offender sentenced to death after conviction by a court of law of a criminal
offence.

1
Sandeep Joshi and Ashok Kumar, ‘Afzal Guru hanged in secrecy, buried in Tihar Jail’ The Hindu (New Delhi, 9
February 2013) <http://www.thehindu.com/news/national/afzal-guru-hanged-in-secrecy-buried-in-tihar-
jail/article4396289.ece>
2
State v Ram Singh and another SC No. 114/2013.
3
Delhi Gangrape: All four accused sentenced to death, The Hindu (New Delhi, 13 September, 2013)
<http://www.thehindu.com/news/national/delhi-gangrape-all-four-accused-sentenced-to-
death/article5123772.ece>
4
ibid.
5
Kronenwetter 2001, p. 202
Capital offence refers to any criminal charge which is punishable by the death penalty.
Crimes punishable by death vary from state to state and country to country. In some
American states these offenses may include first degree murder (premeditated), murder
with special circumstances (such as intentional, multiple, involved with another crime, with
guns, of a police officer, or a repeat offense), and rape with additional bodily harm, and the
federal crime of treason. A charge of a capital offense usually means no bail will be allowed.

CRIMINOLOGICAL APPROACH OF CAPITAL PUNISHMENT

When we talk of capital punishment, two theories of punishment, namely preventive theory
and reformative theory occupy our minds.

“An eye for an eye will turn the whole world blind.” -Mahatma Gandhi

This line by Mahatma Gandhi is the thrust of the Reformative Theory of punishment. The
most recent and the most humane of all theories are based on the principle of reforming
the legal offenders through individual treatment. Not looking to criminals as inhuman this
theory puts forward the changing nature of the modern society where it presently looks into
the fact that all other theories have failed to put forward any such stable theory, which
would prevent the occurrence of further crime.6 According to reformative theory, the aim of
punishment is to educate or reform the offender himself. The Reformative theory is
supported criminology. Criminology regards every crime as a pathological phenomenon a
mild form of insanity, an innate or acquired physiological defect. There are some crimes
which are due to wilful violation of the moral law by normal persons. Such criminals should
be punished adequately to vindicate the authority of the moral law. This theory aims at
transforming the criminal minds in a way that the inmates of the peno-correctional
institutions can lead the life of a normal citizen. It aims at their rehabilitation and
conforming to the norms of the society; into law-abiding member. This theory condemns all
kinds of corporal punishments.7

“An owner of the land puts a notice that ‘trespassers’ would be prosecuted. He does not
want an actual trespasser and to have the trouble and expense of setting the law in motion
against him. He hopes that the threat would render any such action unnecessary; his aim is
not to punish trespass but to prevent it. But if trespass still takes place he undertakes
prosecution. Thus the instrument which he devised originally consists of a general warning
and not any particular convictions.” -Fitchte

We know that "prevention is better than cure". The idea behind the preventive theory of
punishment is to keep the offender away from the society. The offenders are punished with
death, imprisonment of life, transportation of life etc. Preventive theory was supported by
6
Sue Rex & Michel Trony, "Reform and Punishment" Willian Publishing
7
Bachan Singh v State Of Punjab; AIR 1980 SC 898
utilitarian law reformers because of its humanizing influence on penal law. In their view, it is
the certainty of law and its severity which has a real effect on offenders. The development
of the institution of prison is essentially an outcome of the preventive theory of crime. The
main purpose of preventive theory is to take such step as the accused person does not
repeat the offence after enjoyment of sentence. This theory justifies capital punishment as
an extreme form of punishment because of its determent effect. India follows the
preventive theory. A man has taken the life of another man. So he ought to be deprived of
his life.

NATIONAL PERSPECTIVE
A careful scrutiny of the debates in British India's Legislative Assembly reveals that no issue
was raised about capital punishment in the Assembly until 1931, when one of the Members
from Bihar, Shri Gaya Prasad Singh sought to introduce a Bill to abolish the punishment of
death for the offences under the Indian Penal Code. However, the motion was negatived
after the then Home Minister replied to the motion.

The Government's policy on capital punishment in British India prior to Independence was
clearly stated twice in 1946 by the then Home Minister, Sir John Thorne, in the debates of
the Legislative Assembly. "The Government does not think it wise to abolish capital
punishment for any type of crime for which that punishment is now provided".8

At independence, India retained several laws put in place by the British colonial
government, which included the Code of Criminal Procedure, 1898 (‘Cr.P.C. 1898’), and the
Indian Penal Code, 1860 (‘IPC’). The IPC prescribed six punishments that could be imposed
under the law, including death.

For offences where the death penalty was an option, Section 367(5) of the CrPC 1898
required courts to record reasons where the court decided not to impose a sentence of
death:

If the accused is convicted of an offence punishable with death, and the court sentences
him to any punishment other than death, the court shall in its judgment state the reason
why sentence of death was not passed.

In 1955, the Parliament repealed Section 367(5), CrPC 1898, significantly altering the
position of the death sentence. The death penalty was no longer the norm, and courts did
not need special reasons for why they were not imposing the death penalty in cases where
it was a prescribed punishment.

8
Op.cit. Capital Punishment in India by Dr. Subhash C. Gupta, 2000, p. 1
The Code of Criminal Procedure was re-enacted in 1973 (‘CrPC’), and several changes were
made, notably to Section 354(3):

When the conviction is for an offence punishable with death or, in the alternative, with
imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded and, in the case of sentence of death, the special
reasons for such sentence.

This was a significant modification from the situation following the 1955 amendment
(where terms of imprisonment and the death penalty were equal possibilities in a capital
case), and a reversal of the position under the 1898 law (where death sentence was the
norm and reasons had to be recorded if any other punishment was imposed). Now, judges
needed to provide special reasons for why they imposed the death sentence.

These amendments also introduced the possibility of a post-conviction hearing on sentence,

including the death sentence, in Section 235(2), which states:

If the accused is convicted, the Judge shall, unless he proceeds in accordance with the
provisions of section 360, hear the accused on the question of sentence, and then pass
sentence on him according to law9.

INTERNATIONAL PERSPECTIVE
Capital Punishment has been practiced in various countries from very ancient times.
According to Ancient Roman Law, to make capital punishment even more painful, the
offender was physically tortured before granting the death penalty. Often, this was done at
public places to threaten the people so that the people do not dare to make that offence again.
A patricide was put in a sack accompanied with a dog, a cat and a snake and further the sack
was thrown into the river to ensure a painful death for him. A person who failed to pay his
loans was thrown down from a hill. There was a provision of death penalty in countries like
Yunan as well. The offender was killed in the public place after his skin was taken out. In
Philistine, the offender was killed by throwing him on the point of the javelin or by throwing
stones at him. In counties such as Australia and Germany, the criminal was buried live and
after that crushed with wheels and also their eyes were damaged through hot iron rods.

The international landscape regarding the death penalty – both in terms of international law
and state practice – has evolved in the past decades. Internationally, countries are classified
on their death penalty status, based on the following categories:

 Abolitionist for all crimes

 Abolitionist for ordinary crimes
 Abolitionist de facto

9
India. Law Commission of India, Report No.262 on Death Penalty, August 2015, pp. 17-18.
  Retentionist

England

The traditional form of granting punishment in England was hanging. But it was not the form
of death penalty. The name of Henry VIII is very famous in the history of England when we
refer to capital punishment. He gave death sentence to more than 72,000 people during his
rule for every small crime and highly terrific methods were adopted to kill the guilty. The
offender was often dropped in boiling water or oil. Queen Elizabeth, daughter of Henry VIII,
was said to be far beyond his father in granting death penalty. Hanging was the traditional
form of capital punishment in England. However it was not the only one. In England
beheading was normally reserved for the highborn and it was last used in 1747. In the 16th
century during the reign of Mary nearly 300 Protestants were burned to death in England. In
the 18th century in Britain women found guilty of counterfeiting or murdering their husbands
were burned. But burning as a capital punishment was abolished in Britain in 1790. The
punishment for treason in England was hanging, drawing and quartering. The person was
drawn on a hurdle pulled by a horse to the place of execution. They were hanged but if they
were still alive and sometimes conscious they were cut down.

However hanging was the most common method of execution in England from Saxon times
until the 20th century. At first the criminal stood on a ladder, which was pulled away, or on a
cart, which was moved. From the 18th century he stood on a trapdoor. Sometimes the hanged
man broke his neck when he fell but until the 19th century he was usually strangled by the
rope. In the 18th century and the early 19th century hanging was the punishment for many
crimes not just murder. During the early 19th century the number of crimes punishable by
death was greatly reduced. Hanging as a punishment for forgery was abolished in 1836. After
1861 capital punishment was only retained for 4 crimes, murder, piracy, arson in the Royal
Dockyards and high treason.

In 1908 hanging was abolished for people under the age of 16. In 1933 the minimum age for
hanging was raised to 18.

Due to public demand a British Royal Commission was set up to think upon abolishing death
penalty in 1949. Henceforth, capital punishment was banned for 5 years in England and
Wales in 1965 and finally abolished in the year 1969. But since the last two decades, keeping
in mind the increasing crime rate, the re – introduction of capital punishment has become
necessary.10

10
Criminology and Criminal Administration, Dr. N.V. Paranjape, Second Edition 1999, Central Law
Publication
America (U.S.A.)

Capital punishment (also called the death penalty or execution) in the United States is
limited under the Eighth Amendment to the United States Constitution, and, in practice, is
used almost exclusively for aggravated murders committed by mentally competent adults.

Capital punishment was a penalty for many felonies under English common law, and it was
enforced in all of the American colonies prior to the Declaration of Independence. It is
currently a legal sentence in 32 states, 8 as well as the federal civilian and military legal
systems. Since capital punishment was reinstated in 1979, thirty-four states have performed
executions. Texas has performed the most executions by far, and Oklahoma has had
(through mid-2011) the highest per capita execution rate.11

The methods of execution and the crimes subject to the death penalty vary by state and
have changed over time. The most common method since 1976 has been lethal injection. In
2013, 39 inmates were executed in the United States12 and 3,108 were on death row13 – an
execution rate of less than 2%. Many states such as Texas, Oklahoma, Florida, Ohio and
Arizona regularly execute convicted murderers.

CONSTITUTIONAL/ JUDICIAL APPLICATION OF DEATH

PENALTY
While the death penalty has always been questioned as being violative of the fundamental
rights, the courts have, after extensive discussions, rejected this viewpoint. Jagmohan Singh v
State of U.P14 was the first attack by abolitionists on death penalty, challenging the validity of
the punishment against multiple constitutional rights. The challenge of constitutionality of the
punishment was rejected by the constitutional bench of the Supreme Court. Validity of the
punishment was attacked on four vital points. It was said to be infringing fundamental right
guaranteed by the Constitution of India. Firstly, it was contended that it infringed all the
freedoms guaranteed under art. 19(1)(a)-(g).15 Secondly, the process of awarding the
punishment ran contrary to the article 14 of the Constitution guaranteeing equality. It was
contended that the discretion the judges had to award two persons guilty of the same crime
with different punishments of either a sentence of life or death was violative of equality
before the law.16 Thirdly, there was no procedure in CrPC for the determination of the
punishments to be awarded. The absence of any procedure established by law under which
life could be extinguished resulted in violation of the right to life and liberty. 17 Lastly, the

11
"The Execution State?” Oklahoma Watch.
12
"Death Penalty in 2011: Year End Report".
13
"Death Row Inmates by State and Size of Death Row by Year"
14
(1973) 1 SCC 20.
15
Constitution of India, art. 19(1)(a)-(g).
16
ibid, art. 14.
17
ibid, art. 21.
contention was that the complete discretion the judges had to award punishments without any
legislative policy or standard formulated by legislature was a case of excessive delegation.

The Supreme Court was not persuaded by the contentions raised in the case. Against the
argument of excessive delegation, court held that the impossibility of setting down the
standards was at very core of the criminal law which invests judge with a very wide
discretion of power which is liable to be corrected by superior courts. It also opined that
deprivation of life was constitutionally permissible as it was imposed after a trial in
accordance with the procedure established by law.

Talking about Judicial approach, Justice Krishna Iyer, of the Supreme Court, is among one of
the few judges who took a stand for the abolition of death penalty in India. His judgments
show a different aspect of the penalty where he tries to contemplate the emotions of the
accused to find out the reasons which eventually led to the crime. Ediga Anamma v State of
Andhra Pradesh18 is an important judgment delivered by Justice Iyer, in which it was held
that the crime and criminal are equally material while deciding the sentence. The Court
extensively dwelt upon the social background the accused who had killed her lover's wife and
her kid in cold blood and brilliantly wiped off all the evidences. The Court also considered
her social and mental conditions, and after considering all the mitigating and aggravating
circumstances, dissolved the death sentence awarded to her and awarded her life
imprisonment, with the Court noting:

"Modern penology regards crime and criminal as equally material when the right sentence
has to be picked out although in our processual system there is neither comprehensive
provision nor adequate machinery for collection and presentation of social and personal data
of the culprit to the extent required in the verdict on sentence. However, in the Criminal
Procedure Bill, 1973, Parliament has wisely written into the law a post-conviction stage when
the judges shall "hear the accused on the question of sentence and then pass sentenced upon
him according to law."19

The need for special reasons in awarding the death penalty as demanded in the amended
CrPC was reiterated in Rajendra Prasad v State of U.P20 a case in which the Court tried to set
the standards for the imposition of the death penalty. The Supreme Court held that the special
reasons which were mandatory before awarding death penalty in cases punishable by life
imprisonment as per section 354(3) of CrPC re-enacted in 197321 must relate not to the crime
but to criminal. It could be awarded only if the security of state and society, public interests,
and order of the general public compelled that course.

18
1974 AIR 799.
19
Ediga Anamma vs State of Andhra Pradesh ,1974 AIR 799 [334C].
20
(1979) 3 SCC 646.
21
CrPC 1973, s 354(3) states: "When the conviction is for an offence punishable with death or, in the
alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the
reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such
sentence."
ANALYSIS
With the increasing significance of human rights, individual liberties and civil society, there
has been an international trend towards abolition of death penalty. The Supreme Court has
repeatedly held that the death penalty is not unconstitutional and does not violate Article 21
of the Constitution. The Apex Court, however, has made its intentions clear by refusing to
define clearly as what constitutes the 'rarest of the rare cases' and left it to the discretion of
the judges hearing the case despite knowing that the same would lead to a differing set of
results. Therefore, it is vividly clear that the judges have been awarding death sentence
according to their own scale of values, social philosophy and exercise of judicial discretion as
per the facts of the cases. There are some very strong arguments for and against abolition of
the death penalty, however the researcher feels and purports that death penalty does not
serves its purpose in modern times and the reasons for the same are provided.

i. Literature Review

The research on whether capital punishment has an impact over the incidence of crime is of
contradictory nature. Some researchers such as Ehrlich (1975) have found that capital
punishment does reduce criminal activity such as robberies, property crimes and assaults.
Some researchers such as Cameron (1994) have found no relation between capital
punishment and criminal activities. A possible explanation for this can be derived by looking
at the kind of crime that is committed. If the crime is not a severe one such as petty theft,
property crimes, robbery, and the criminals are not subject to capital punishment then it can
be inferred that introduction capital punishment may not have any impact on crimes of
smaller scales. Researchers such as Shepherd (2005) have found that capital punishment has
different impacts in different societies and states (study in the US). Donohue and Wolfers
have found that a death penalty has no deterrence effect (i.e an effect that motivates the
criminals in future to give up such crimes) and this they explained is because of its modest
use. This particular statement that they made can be seen in the Indian context. In the
Nirbhaya case of 2012, the culprits were supposed to be given death penalty and a death
sentenced had been announced, but later they were sentenced to life imprisonment. The
juvenile in that case, who committee a heinous crime was set free. Such a decision is said to
have encouraged the crimes against women. This release of a prisoner has imposed a cost on
the society. People respond to incentives, and if the criminal is not burdened with a cost of
punishment in any form, his obvious motivation is to commit the crime.
ii. Capital Punishment is cruel, degrading and disproportionate

Cesare Beccaria wrote in 176422 that capital punishment is founded on vengeance and
retribution, and not on reformation of the criminals and prevention of future crimes, which is
the purpose of punishment, i.e., the deterrence argument. There is considerable evidence to
support this argument. Scientific studies have consistently failed to find convincing evidence
that the death penalty deters crime more effectively than other punishments. The most recent
survey of research findings on the relation between the death penalty and homicide rates,
conducted for the United Nations in 1988 and updated in 2002, concluded that “it is not
prudent to accept the hypothesis that capital punishment deters murder to a marginally greater
extent than does the threat and application of the supposedly lesser punishment of life
imprisonment”.23 It also concluded that “The fact that the statistics... continue to point in the
same direction is persuasive evidence that countries need not fear sudden and serious changes
in the curve of crime if they reduce their reliance upon the death penalty”. 24 Thu there is no
evidence to support that crime rates decrease with the imposition of the death penalty.

Recent crime figures from abolitionist countries fail to show that abolition has harmful
effects. In Canada, the homicide rate per 100,000 population fell from peak of 3.09 in 1975,
the year before the abolition of the death penalty for murder to 2.41 in 1980, and since then it
has declined further. In 2002, 26 years after abolition, the homicide rate was 1.85 per 100,000
population, 40 per cent lower than in 1975.25

iii. Fallibility of Judgment in case of Capital Punishment

The abolitionists are opposed to death penalty for reasons that utilitarian support and also for
reasons of fallibility of judgment. A judgment being given by human beings based on
evidence produced in courts, the possibility of human error cannot be ruled out and the
irreversibility of death penalty makes it dangerous and opposed to the principles of
proportionality. As human justice remains fallible, the risk of executing the innocent will
never be eliminated. Justice P.N. Bhagwati in his dissent in Bachan Singh's26 case has made
two astute observations. Firstly, that it is impossible to eliminate the chance of judicial error.
Secondly, that the death penalty strikes mostly against the poor and deprived sections of
society.

22
Cesare Beccaria, On Crimes and Punishment (1764), Trans H. Paoluscci (1963), Indianapolis:
Bobbs-Merrill.
23
Roger Hood, The Death Penalty: A worldwide Perspective, Oxford University Press, Third
Edition, 2002, p. 230.
24
Ibid. p. 214.
25
http://web.amnesty.org/pages/deathpenalty-facts-eng.
26
Supra N. 20.
v. Long delay in execution

It is an undisputed fact that litigation in India is a very time consuming affair. Extensive
delay in the execution of a sentence of death does not serve any kind of purpose and is
sufficient to invoke Article 21 and demand its substitution by the sentence of life-
imprisonment.27

vi. Reformative approach

In Narotam Singh v. State of Punjab28 the Supreme Court has taken the following view:

“Reformative approach to 'punishment should be the object of criminal law, in order to

promote rehabilitation without offending community conscience and to secure social justice.”

vii. Moral Grounds

By allowing death penalty morally nothing is achieved except more death, suffering and pain.
Secondly, why should a person be allowed to die a quick, almost painless death if he
murdered another person violently? Instead he must languish in prison up to his natural death.
In fact, if the social values really mean that killing is wrong, then the society must abolish
death penalty. Death penalty legitimizes an irreversible act of violence by the state.

27
Supra N. 15.
28
AIR 1978 SC 1542.
CONCLUSION
“Our penal code provides for capital punishment for wide range of offence. But sadly, the
death penalty has never reduced these crimes in the country”.29

- Justice V.R. Krishna Iyer

While over 66% of the countries in the world abolishing death penalty, India still retains it,
largely believing it to have a deterring effect. 30 The punitive system is based on three major
theories of retribution, deterrence and rehabilitation. Deterrence and retribution, where the
society demands revenge, fail to provide adequate reasons for the use of the death penalty. It
is evident that killing a killer has never stopped from a new killer emerging. Moreover, the
death penalty neglects the rehabilitation or reformative theory from the very beginning. India
needs to move from a retributive model to reformative-punitive system. Killing is and has
never been a solution. The solution lies in the effective system to apprehend the perpetrators
and effective prosecution so that no one escapes from the hands of law. If that happens, life
imprisonment will adequately fulfil the deterrence and retributive theory; the death penalty
will not serve any additional purpose. It is high time that India renews its attention towards
the abolishment of the death penalty.

29
‘Theories of Punishment and Deterrance’
<http://www.cansocietyescapethenoose.com/16_THE%20THEORIES%20OF%20PUNISHMENT%20AND%20DET
ERRENCE.pdf>
30
Amnesty International, ‘Death Sentences and Executions 2012’, p. 50.